Memeorandum

March 08, 2007

Was Valerie Plame Covert?

We note a mini-breakthrough in the media! Dan Froomkin, in an on-line chat, say this:

Blacksburg, Va.: How can the question of Valerie Plame Wilson's status at the CIA (covert or not) finally be cleared up?

Dan Froomkin: Wouldn't
that be nice? Fitzgerald tried to clear it up yesterday, stating quite
definitively that her status was classified. Which means that while she
technically may not have been covert by the standards of the IIPA, her identity as an operative was secret, and should not have been disclosed.

Given the continued debate over what is a fact, it would be nice if it were revisited journalistically and definitively.

He does not know! Well, neither do I, but I welcome him to the club.

Briefly, my official editorial position is this: We don't know Ms. Plame's status, and it would take heavy legal research which has not been done to establish it.

The Intelligence Identities Protection Act requires that an agent have classified status and the the agent "is serving outside the United States or
has within the last five years served outside the
United States".

And what constitutes service overseas? Wilso-philes basically stamp their feet and insist that any trip abroad would qualify; since Ms. Wilson went to Jordan in 2002 on Agency business (or so it has been reported), she qualifies and is "covert' as per the statute.

Victoria Toensing, an attorney who helped draft the statute, argues that based on history and intent, service overseas referred to a specific posting, not just a business trip.

My view is, who knows? This law has been applied once, with CIA clerks and officers based in Ghana, so this specific issue of this law has never been tested in court. Which means that the prosecution has not prepared a brief, the defense has not prepared a brief, a judge has not ruled, and we don't know.

And that explains Judge Walton's statement to the jurors that he does not know Plame's status either - the fact is, until the legal arguments are joined (and more facts about Ms. Plame's service and postings become available), her covert status is probably not something that can be answered by more diligent reporting.

If you care for my guess, it is that Ms. Toensing's view would carry the day - it is clear from the snippet of Agee history in this post (scroll down to "More on the IIPA") that the law was directed to problems arising from overseas postings:

To identify C.I.A. personnel in a particular country, Agee goes to the
target country and consults sources in local diplomatic circles whom he
knows from his prior service in the United States Government. Agee and
his collaborators have repeatedly and publicly identified individuals
and organizations located in foreign countries as undercover C.I.A.
agents, employees, or sources.

The locals in a particular country could generally guess who the real Foreign Service officers were, and which ones were carried on the US roster as being in the Foreign Service but were really with the CIA.

And lest the notion that traveling abroad may not equate to serving abroad seems hopelessly unlikely, I will close by noting that if Ms. Plame were a covert geologist, this issue would be clear:

D. Service abroad means service on or after September 6, 1960, by an
employee at a post of duty outside the United States and outside the
employee's place of residence if that place of residence is a territory
or possession of the United States.

Well, she is not a geologist.

LATE ADDITION: This post covered the legal implications of Ms. Plame's pension status and, I daresay, represents a helpful idea for resolving Ms. Plame's status under the IIPA that was offered no where else. In brief - CIA officers receive un upward bump in their pension for time sent in "service abroad". Ms. Plame's pension reflects her full service abroad, and presumably the last date, so her coverage under the five year provison of the IIPA should not be rocket science. This assumes that CIA practice for tracking service abroad would match the Congressional intent in passing the IIPA statute.

Comments

Okay, I don't know much about that act you are referring to - but it doesn't refer to that act in the INDICTMENT! So it doesn't really matter does it?

Only Title 18 and Title 50 are referred to:

Beginning in or about January 2004, and continuing until the date of this indictment, Grand Jury 03-3 sitting in the District of Columbia conducted an investigation (“the Grand Jury Investigation”) into possible violations of federal criminal laws, including: Title 50, United States Code, Section 421 (disclosure of the identity of covert intelligence personnel); and Title 18, United States Code, Sections 793 (improper disclosure of national defense information), 1001 (false statements), 1503 (obstruction of justice), and 1623 (perjury).

Plame was not covert so Title 50 doesn't apply. There was no specific document for Libby so Title 18 doesn't apply.

Okay maybe there is a little wiggle room with "including". I'm no lawyer, but to me, to not list the supposed criminal law in advance in the indictment is a little like a fishing expedition and like an unwarranted search. That's against your (4th?) amendment man!

Okay where does that Act come from? Is that the civil law I heard about? I looked it up in Findlaw and it is not in the US/Federal criminal Code, which is probably why it is not included in the indictment.

Well, somehow Judy Miller got the idea that she worked for a "Bureau" -- maybe it really was the Bureau of Mines? Or I suppose it could have been the Bureau of Land Management - they've got to have a bunch of geologists working for them, too.

I'm back to harping on the fact that Plame was not classified, because the Executive Order defining what can and cannot be classified explicitly says that her CIA NOC status cannot be classified:

Sec. 1.7. Classification Prohibitions and Limitations. (a) In no case shall information be classified in order to:

(1) conceal violations of law, inefficiency, or administrative error;

(2) prevent embarrassment to a person, organization, or agency;

(4) prevent or delay the release of information that does not require protection in the interest of the national security.

Read the whole document -- you'll see that the sec 1.7(a)(1)(2)(4) exclusions don't include any caveats on the order of "it's ok to classify it when we take a useless bimbo who should have been laid off in the Clinton budget cuts and put her in bookkeeping as a secret agent so we can keep paying her."

03/06/2007 Minute Entry for proceedings held before Judge Reggie B. Walton ...PSI [Pres sentence investigation] report due by 5/15/07, any disputes due by 5/25/07. Defendants motions due by 4/13/2007. Responses due by 5/11/2007, Replies due by 5/23/ 2007. Sentencing set for 6/5/2007 09:30 AM in Courtroom 16 before Judge Reggie B. Walton. Bond Status of Defendant: Defendant continued on PR bond. ... (Entered: 03/08/2007)

A NOC agent wouldn't necessarily be limited to an attachment at the CIA. Routinely a NOC is posted to the Department of Energy, the Department of Treasury, or the Federal Rerserve, or in Val's case, to the Department of State.

I think it was Congressman Mark Kirk that had a lapse in judgement and acknowledged that he was a CIA agent on the House floor(late 2003, early 2004). At the time, nobody knew about Kirk's CIA background. He only listed his background as serving in a post at "US Naval Intelligence".

Kirk's challenger in the 2004 general election instigated that the CIA may have active agents SERVING IN CONGRESS. That allegation didn't get much traction, but one would think it would be a major story.

Of course it does, cause at this point there is absolutely no reason what so ever that Valerie couldn't tell us herself--and notice she has not.

Hey, Syriana boy was covert--and he's all over the television. And there is another female NOC that had a book published by Thundermouth Press (ole whatshername) who was on CSPAN with Dana Priest.

Now, if they were "Covert" when they left the agency, and can now at least talk about it, why can't our girl Val? Answer--because she knows that she was NOT. She and Joe have never come out and claimed that she was--just that she had been.

And she knows that if people find out the truth--that this was all hyped up BS along the lines of "Joe went at the behest of Cheney" when the trip was arranged the day before Cheney made an inquiry--she'll look like more of a fool and a liar than she already is.

Covert or not covert -- the only way to know that, for sure, is to review her postings in her personnel file. But, obviously, we don't have access to that, do we? No.

But let's see what we know . . . fake consulting job with a non-existent consulting firm; even her friends of ten years or more thought she worked as an "energy consultant"; but she was actually working for the CIA on Iranian w.m.d. issues. And traveled to Jordan as an "energy consultant" tracing leads on what the Iranians might have been buying. And you cons think she is NOT COVERT? And not "posted" abroad? Even though her real employer is hidden and she is workinf for the CIA on foreign soil? Er, yeah . . . OK . . . .

Likewise, Toensing's argument is stupid. Imagine a CIA agent who poses as a banana importer. He travels to banana producing countries three times a year, but never stays for more than a week or two. Buying bananas, visiting friends, and, from time to time, taking a drop from spies he has working with the armed forces of each banana producing country. Let's say someone who knows he is doing this, knows he is a spy, and outs him anyway. Does Toensing REALLY think he would not be considered "covert"? Please!

There is a VERY simple reasons Fitz did not charge anyone with violation of these acts and it involves a single word: "knowingly". From what I can tell, none of the Bushies who were blabbing to the media about the CIA employee KNEW she was covert. You cons want to spin and spin about her not being covert (something that, alas, there is no real proof of) all the wile missing the real point: the Bushies were negligent and stupid in exposing the underocver CIA agent, but they apparently did not do it maliciously. Typical con incompetence, but no criminal liability.

The IIPA came about because it was not illegal to "out" covert agents. The IIPA didn't make it illegal to out each and every agent involved in clandestine work, only those whose position made them vulnerable to enemy action.

So possible for an agent to be covert according to the CIA but not qualify for the legal protection of IIPA.

The greater mystery is why is this new post in the middle of the page?

Good point - it started out as a draft and was superseded buy other stuff.

Likewise, Toensing's argument is stupid. Imagine a CIA agent who poses as a banana importer...

Or, imagine reading the statute. Just an idea.

If your point is that maybe the law has holes, or provides less coverage than the CIA would like, well, write a letter to your Congressman. But one issue Congress considered in passing this law was my free speech right to criticize the government and its conduct, and they were concerned about "gotcha" prosecutions - I complain about some government goon traveling too much, and the next thing I know I am in a jail cell reading about covert agents. Not the American way. Or so Senators like Gary Hart thought (he opposed the IIPA in 1982).

You cons want to spin and spin about her not being covert (something that, alas, there is no real proof of)...

Well, the proof that she *is* covert is what, exactly? Or is that how it works - whatever you say goes, unless I can prove otherwise?

As to "knowingly" - no kidding (I'll throw in one recent post making that point, but there are plenty more). But since you have missed the larger point, let me try this - Libby's knowledge or lack thereof can help his own defense against an IIPA charge (and that was certainly kicked around in wondering about his motive to lie).

However, if it can be established that Ms. Plame was not covert, then the foundation of the entire Fitzgerald investigation collapses (arguably).

In which case, Libby's argument is that the perjury is a "lesser of two evils" problem where the greater evil is an abusive prosecutor investigating nothing while loking for perjury.

Fitzgerald says she was classified. Hence her identity should not have been disclosed. All this dancing on a pinhead is just another attempt by Libby and administration apologists to muddy the water surrounding this affair. Since Fitzgerald has spent four years on this, can't we assume he knows more about it than most of the self appointed Perry Masons posting on this site.

Actually, Fitzgerald says her "status" was classified. A human being isn't classified.

The question is simple, to investigate charges by the CIA that her status was revealed the CIA must meet the requirements of the statute(IIPA). Ergo, providing the cover, the deployment overseas in the past 5 years, etc.

The problem here is that we know from former CIA assets that Valerie did have "non-official cover". This by itself doesn't tell us anything about the exact nature of the referral by the CIA the DoJ. Fitzgerald will not tell us because that referral is classified. The DoJ will not reveal the contents of the CIA referral, nor will the CIA reveal them to the public.

This question will likely never be answered unless Deep Throat 2.0 is spawned.

verner: Ms. Priest's conversation was with her former active CIA source, Melissa Boyle Mahle. I'm not aware if Mahle ever fit the definition of the IIPA statute.

The problem with the statute is that the CIA has many different classifications that don't have any relation to the law. For example, a NOC asset is just a CIA employee that is tasked with protecting their own cover. The CIA just provides a basic front, most of the time a phone number that directs to an agency call center with a receptionist on the other end.

"covert" is a term that the public uses. To the CIA, covert could be any number of different covers. "deep cover" would be an entire life story along with phony papers, passports, and contacts in case the asset ever needed to back up their story.

The basis of the crime also must include the overlooked caveat. The person that writes or discusses the asset MUST KNOW the asset is a NOC or a deep cover asset and must reveal the aspects to their cover. Joe Wilson fits this description. Former CIA assets are quoted as saying that Plame was likely taken off the NOC list or the deep cover list once she chose to marry a public figure, an Ambassador no less, in Joseph Wilson.

Gabriel...yes Fitz knew that Armitage was the source of the Novak leak. What Fitz did not know, and didn't find out due to disinterest or carelessness, was that Armitage leaked to Woodward in direct conflict with what Fitz said at his infamous news conference--Libby was the first to leak.

Okay thanks Tom on that law. Was confused there for a second (what's new right?) because I saw this in the title of your link:

TITLE VI—PROTECTION OF CERTAIN NATIONAL SECURITY INFORMATION
PROTECTION OF IDENTITIES OF CERTAIN UNITED STATES UNDERCOVER INTELLIGENCE OFFICERS, AGENTS, INFORMANTS, AND SOURCES
SEC. 601 -

So I looked up Title 6, Sect 601 in Federal law, which didn't exist. So it is the same thing as Title 50. And that law applies ONLY to covert agents. Not even just "classified" information. No covert agent, no infraction. So why don't we know if Valerie was covert? And shouldn't Libby have the ability to know about this and fight this in court as the basis for a charge? I mean after all even the Guantanimo guys and Jose Padilla types have fought and won to get information declassified for their cases. Why not Libby? The only thing I can think of is Libby made an agreement with Fitz to keep that issue out of the court room for the good of the country.

The only thing I can think of to legally excuse Fitz's investigation, is that he used Title 18, United States Code, Sections 793 (improper disclosure of national defense information) as the basis for his investigation, not Title 50. Title 50 explicitly needs a "covert" agent, so that would have been over for Fitz after a quick phone call to the CIA. Once specific knowledge is apparent that no crime possibbily exists for a charge, the investigation into that charge should be dropped.

However, Title 18 talks about a classified document. Although there was no particular document connected to Libby, Fitz did not know that at the time and until after the investigation was over. After all, there had been some information of that classified memo that was floating around on the plane, etc. The fact that Fitz could not rule out any violation of that statute, like he could for Title 50, in my opinion, gave him cover to pursue Libby's investigation. So - curses, foiled again.

You know, the more I think about it, the more I think the fact that Fitz even wrote Title 50 into the indictment at all means to me that Valerie Plame MUST be covert- and they just aren't telling us.

That must be because Libby made an agreement with Fitz to drop that angle of defense and keep it secret. There is no other explanation, because to keep that charge on the indictment otherwise would be Fitz's false statement. That is why Fitz said after the verdict something like - "make no mistake, Plame is classified." It's a secret on double duty probation.

A) Wilson and Plame stated in the 'Vanity Fair' article that Valerie told Joe on their third date that she was an undercover agent (no pun intended). What kind of 'secret agent' tells some guy she just met that? Answer: A clueless one. She outed herself in bed.

B) Plame had twins in 1999. Does anyone out there actually believe the CIA would have a breast-feeding mommy running around the world acting as a covert agent?

C) Tim Russert, Andrea Mitchell, and the 'Meet The Press' producers knew of Plame's identity before July 6, 2003. That was the day Wilson's letter appeared in the New York Times, and the day Wilson also appeared on 'Meet the Press'. Wilson told them all of his wife's WMD analyst position in order to give him the credibility to get on the show.

D) Russert's wife is a contributing writer for 'Vanity Fair'. He gave her the inside referral to write the story on the Wilson 'Spy' Family.

So you get your wish. As you state, it's always so much nicer to know rather than to spin.

So true.
It will be interesting to find out if she was covert, how it happened that the FBI investigation went off the rails so quickly and why Fitzgerald didn't investigate thoroughly enough to get a conviction.

C) Tim Russert, Andrea Mitchell, and the 'Meet The Press' producers knew of Plame's identity before July 6, 2003. That was the day Wilson's letter appeared in the New York Times, and the day Wilson also appeared on 'Meet the Press'. Wilson told them all of his wife's WMD analyst position in order to give him the credibility to get on the show.

according to a Feb 13 Newsweek article, one of Walton's opinions included the disclosure that the CIA did, in fact, consider Valerie Plame "covert" -- that she continued to travel outside the country under "cover", and the CIA continued to make an effort to protect her identity.

perhaps more importantly, Toensing's "analysis" consists of finding no distinction being "serving" outside the US, and being "stationed" outside the US in a specific place for an extended period of time. This is rather nuts, given the nature of Plame's "cover" job as an energy consultant working for an American firm; nothing requires her to have long-term assignment to any particular station, and it makes a great deal of sense that her "base" would be in the US and her sources in a variety of different countries.

Valerie Plame was covert -- and the reason no one has been tried under IIPA are two-fold. First, the difficulty of proving intent, but more importantly, the difficulty in proving the elements of IIPA without having to disclose top secret "sources and methods" information to the defense in order to provide them their constitutionally protected "due process:.

At the time, Wilson was based in Stuttgart, serving as the political adviser to George Joulwan, the U.S. general in charge of the European command; Plame was based in Brussels. Meeting in Paris, London, and Brussels, they got very serious very quickly. On the third or fourth date, he says, they were in the middle of a "heavy make-out" session when she said she had something to tell him. She was very conflicted and very nervous, thinking of everything that had gone into getting her to that point, such as money and training.

She was, she explained, undercover in the C.I.A. "It did nothing to dampen my ardor," he says. "My only question was: Is your name really Valerie?"

But I wouldn't mind if she was forced to say her husband was lying about that.

Also, I am not sure this is covert agent SOP revelation either -

It was. Valerie P., as she was known to her classmates at the Farm, in Camp Peary, Virginia, the C.I.A.'s training facility, where former C.I.A. agent Jim Marcinkowski noticed-as he later told Time magazine-that she showed considerable prowess wielding an AK-47 machine gun. She had chosen the C.I.A. because she was intellectually curious, had a facility for languages, and wanted to live abroad.

Again, rope. If she carries on how near and dear and careful she was, it's a fair point to raise.

On Dec. 30, 2003, the day Fitzgerald was appointed special counsel, he should have known (all he had to do was ask the CIA) that Plame was not covert, knowledge that should have stopped the investigation right there

Yet you say:

the prosecution has not prepared a brief, the defense has not prepared a brief, a judge has not ruled, and we don't know.

So where does that leave the Toensing argument that the investigation should have been dropped straight away? Did Fitz merely need to ask the CIA (as Toensing says) whether Plame was covert for IIPA purposes, or was a court ruling required? Was there a way for Fitz to get a judicial ruling on covertness early on so that the investigation could have been shut down? Maybe there was- IANAL, and I am trying not to be too snarky here :).

Note that JOM national security expert Cecil Turner also says covertness is typically determined at trial.

if it can be established that Ms. Plame was not covert, then the foundation of the entire Fitzgerald investigation collapses (arguably).

Note that this is not the same as saying that it could have been established early on that Plame was not covert and therefore that Fitz should have known early on that there was no foundation.

TS--absolutely not. I mean it. Nothing about that bullshit.
Go to date she began. What her job was when she left.
Her boss at that time
Her job duties.
Last time she was STATIONED abroad.
Maternity leave.
Etc Etc.

This is a fellow that apparently is apolitical, is contacted by 60 Minutes to back up Larry Johnson, and then changes his life plan to run for Congress as a Democrat because he's so outraged for the same reasons as Joe Wilson.

Some former agents stick around the community to be media advisers. Baer is a good example. Most retire to stay away from the public eye.

Fred Rustmann, Plame's boss for some time at the CIA, spoke to the press and said she would have been taken off the NOC or deep cover assignments once she married Wilson, but that was in 1998. Apparently she had the twins in 1997.

I don't believe him, but if it came to it I would savor Ms. Plame admitting her hubby and friends "misspoke" were "misquoted" and using "literary flair" aka "lying" yet again. If it came to it....I repeat, only if she digs a holy than thou hole.

Because the trial that happened wasn't a trial about an IIPA violation, and Fitz probably in any event hadn't established the other elements necessary for an IIPA violation (e.g. not only would Plame have to be covert, the leaker would have to know that she was covert).

Yet in late '03 or early '04 it may not have yet been clear to Fitz that no one had knowingly disclosed her identity. It was tough for him to tell what the heck had actually happened, because he was getting wildly confliciting testimony from different administration officials. So I don't see how we can conclude that he obviously should have dropped the case early on.

And yes, I realize Armitage fessed up early on, but I believe Fitz had authority to investigate any Plame leaking that might have occurred, not just the particular leak that lead to the Novak article.

TS--It's far more significant that she was w/ him when he talked to Kristof and Pincus and probably verified his story to them, that she allowed her name to be in his Who's Who listing and in the EPIC bio, that she listed her name and cover office on the FEC filing w/ her political contribution. Trust me on this--

Clarice
I guess I've given the impression that I think this is priority numero uno. I don't. All I was saying - if the barn door were opened I'd savor the consequences. I seriously do not see a congressman asking about her 3rd date.

Also, I don't think it will go the direction of establishing her bona-fides like everyone else does. The Dems will protect her and Waxman already appears to be calling her not for her situation but as an expert on CIA "covertness" and protection of it.

Fitz would risk a false statement and false arrest and malicious prosecution if he put Title 50 as a basis for his investigation, and continuted to list it in the indictment after the investigation, all the while knowing Plame was not covert. Hence, she must be covert.

The only, only way I could think of to get out of this, is if Fitz did not have specific knowledge she was not covert, like if the CIA did not tell him, citing secrecy, but he investigated anyway. However, I would think this is unlikely and a responsible prosecutor would wait to ascertain this fact before he used that charge as a basis.

Interesting her testimonials this morning. I'd love to know more about those 20 arrows running in and out the names of the executive branch and its' ancillary titles who had the intent on blowing her cover. Especially the dates coming out of the box demarcated "unknown" and whether that's after or before Joe Wilson's op-ed.

Come on, this question really isn't difficult to answer (unless, of course, you don't like the answer). The IIPA establishes a two-part test for 'cover agent' status:

1. Classified Identity. Was Plame's identity with the CIA classified? YES. (Unless you want to argue that Cheney declassified her identity -- but then you'd have to acknowledge that he knew her identity was classified, and ask some inconvenient questions, like: Why did he declassify her identity? Did he understand the ramifications of declassifying her identity?)

2. Service outside the US. Did she do any work for the CIA overseas within the last five years? YES. (Toensing continues to argue that an agent must be STATIONED overseas, but the language in the IIPA is SERVING and SERVED. The funny thing about law is, you can't just change some words when you find them inconvenient to your argument.)

I think in general that's true, and her position that "served" overseas implies a duty station posting matches the general usage. The only government "service" definition I'm aware of is in the retirement section:

(a) The total service of an employee or Member is the full years and twelfth parts thereof, excluding from the aggregate the fractional part of a month, if any.

Which again seems to indicate longer-term assignment.

I'd also take issue with this contention:

First, the law provides definitions of who is covered... and defines ONE group of American citizens as "serving" overseas in the last five years while ANOTHER group of American citizens must "reside" overseas

The obvious difference is that the first group is composed of CIA officers. And while the available data on CIA officers isn't exhaustive, it appears similar to military personnel (note "home leave" and "TDY" sections). Under military procedures, those posted overseas maintain their "legal residence" in the US, even when stationed abroad. So it seems to me the use of "service" in that context strengthens the similarity with civilians' "residence" rather than the opposite. Though I'd concur none of this is dispositive, and the possibility of leaking the identity of an undercover officer whilst TDY abroad, if (s)he were subsequently killed, should certainly be prosecutable . . . and might not be under the "stationed" interpretation.

Why would a statute designed to punish people for outing CIA officers be constructed to distinguish between those 'stationed' overseas and those who made brief undercover assignments overseas?

Perhaps because those with brief undercover assignments wouldn't be subject to the same level of danger given disclosure? Or the same level of discomfiture to US intelligence efforts if such travel were curtailed? But in any event, as a retired military service type, I'd caution against trying to apply common sense to government policies . . . 'cause they often just ain't sensible.

and Fitz probably in any event hadn't established the other elements necessary for an IIPA violation (e.g. not only would Plame have to be covert, the leaker would have to know that she was covert).

Yep, there's the real rub. Fitz admitted he had no evidence of Libby's knowledge of her being covert (if she was). And subsequent testimony made it obvious the CIA types were talking about her without mentioning any caveats on her status. So the IIPA charge was a non-starter, primarily for that reason.

So it sounds like there is still room for debate on whether her position was covert (in the legal sense). But on the other hand, it is well-established that Plame's position was classified (i.e. covert in an ordinary sense), right?

Leaking classified information is a crime too. So why is it such a big deal whether or not she was (legally) covert? What would be stopping Fitz from going after Armitage, Libby and Rove for leaking classified information? Possible answer: He can't prove intent. But my bottom line still stands: why does every care soooo much about covert vs. non-covert?

I'm not a Plame-iac, so forgive me if I'm missing something obvious...